On November 30, 2015, the California Supreme Court issued its ruling in Center for Biological Diversity v. California Department of Fish and Wildlife, invalidating the environmental impact report (“EIR”) for the Newhall Ranch development. The EIR was invalidated due to insufficient evidence supporting the project’s greenhouse gas analysis and for improper CEQA mitigation measures to protect threatened and endangered species.

Background

The Department of Fish and Wildlife (“CDFW”) was the lead agency responsible for preparing the EIR. Developers of Newhall Ranch have been engaged in a decade-long attempt to establish the master planned community in Santa Clarita Valley. The community is proposed to consist of over 20,000 dwelling units, commercial uses, schools, parks, and other community facilities.

The EIR analyzed the project’s greenhouse gas (“GHG”) emissions in comparison to the AB 32 reduction goals adopted by the Clean Air Resources Board (“CARB”). CARB’s AB 32 scoping plan calls for a 29% reduction in “business-as-usual” GHG emission by 2020. The Newhall Ranch EIR projected a 31% reduction in “business-as-usual” emissions, surpassing AB 32 goals. Under the AB 32 scoping plan, the EIR concluded that the project’s GHG emission would have no significant impact and that no measures were required to mitigate the project’s GHG impacts.   The EIR also analyzed impacts to the threatened unarmored threespine stickleback and, as mitigation, proposed relocating those unarmored threespine stickleback to make way for the proposed development.

Analysis

Lead agencies and the development community should take note of this decision for two reasons.  First, the Court endorsed the use of AB 32’s statewide GHG reduction goals as a significance threshold for analyzing a project’s GHG impacts under CEQA. A project’s GHG impact can therefore be measured by its effect on the state’s efforts to meet AB 32 goals.  This provides some flexibility for GHG analysis, as opposed to using strict numerical thresholds to determine when GHG impacts are significant and must be mitigated.  The caveat to this approach, however, is that comparisons to the AB 32 scoping plan must be supported by evidence in the record. Here, the Court found that no finding was made that the residential densities and land use assumptions of the Newhall Ranch project were consistent with the assumptions in the AB 32 scoping plan.  On this basis, the Court invalidated the EIR for failure to support its GHG analysis with sufficient evidence.

Second, the capture and relocation of a protected species is not permitted as CEQA mitigation. CDFW proposed capturing and relocating a fully protected fish to mitigate potential impacts of the Newhall Ranch development. The Court noted an important legal distinction between relocating a species for protection and evicting that species to make way for development. As such, a lead agency should not propose relocating a fully protected species as acceptable CEQA mitigation.  The petitioners in this case are currently seeking clarification from the Court that the proposed relocation also violated the Fish and Game Code.

We will continue to monitor this case to see if the Court revises its initial ruling to include violations of the Fish and Game Code. For any questions regarding the decision and its implications, please contact Barbara A. Brenner (barbara@whitebrennerllp.com), or Robin Baral (robin@whitebrennerllp.com).